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M/s H.S.Traders v. Punjab & Sind Bank - CR-3491-2005 [2006] RD-P&H 5022 (31 July 2006)

C.R. No.3491 of 2005 1



C.R. No.3491 of 2005

Date of Decision:- 10.08.2006.

M/s H.S.Traders and anr. ....Petitioners through

Mr.Amar Vivek, Advocate.


Punjab & Sind Bank ....Respondent






This revision petition has been filed against the order dated 25.5.2005 passed by the Additional Civil Judge (Sr.Division), Amritsar, whereby an application under Order 9 Rule 7 read with Section 151 CPC, moved by the petitioners, has been dismissed.

Notice of motion was issued and as per the office report, service is complete. No one, however, appears on behalf of the respondent- Bank.

The respondent-Bank filed a suit for recovery for a sum of Rs.5,30000/- against the petitioners in which notice was issued to them to appear on 20.11.1998. As per their case, they had engaged Mr.R.M.Zakhmi, Advocate to whom a power of attorney was also given.

C.R. No.3491 of 2005 2

The counsel informed the petitioners that the suit had been adjourned for 6.3.1999. On that day no proceedings could take place as the learned Presiding Officer was on leave. The case was thereafter adjourned to 26.5.1999. On the said date, the petitioners came to know that they have already been proceeded ex parte on 20.11.1998 itself as no one put in appearance on their behalf. They moved an application under Order 9 Rule 7 read with Section 151 CPC on that very day which has since been dismissed by the trial Court vide the impugned order.

Aggrieved, this revision petition has been filed.

I have heard learned counsel for the petitioners at length and perused the impugned order. As can be noticed from the impugned order itself, Mr.Rajinder Mohan Zakhmi, Advocate has entered into the witness box and deposed that he was engaged by the petitioners. He has also filed his affidavit stating that the power of attorney was given to him by the petitioners but the same was unfortunately misplaced.

In my view, the fact that a counsel came forward and deposed before the trial Court, itself was sufficient material to recall the ex parte proceedings and to permit the petitioners to enter their defence. The learned trial Court failed to appreciate the fact that the application was moved by the petitioners at the earliest inasmuch as it is not disputed that on 20.11.1998 the suit was adjourned to 6.3.1999 when the learned Presiding Officer was on leave and it was thereafter adjourned to 26.5.1999 i.e. the date when the petitioners came to know about ex parte proceedings and moved the application to set aside the same.

There appears to be no deliberate attempt to delay the suit proceedings nor the non-appearance of the petitioners can be said to be C.R. No.3491 of 2005 3

without any sufficient cause, more so when they had engaged a counsel and gave power of attorney to him.

For the foregoing reasons, this revision petition is allowed.

The impugned order dated 25.5.2005 is set aside. The trial Court is directed to permit the petitioners to file their written statement and thereafter to prosecute the suit in accordance with law. The petitioners, however, shall pay a cost of Rs.2500/- to the respondent-Bank on the next date of the hearing fixed before the trial Court.

August 10, 2006 ( SURYA KANT )

poonam JUDGE


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